35 F. 364 -

35 F1d 364

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Case Text

364

FEDERAL REPORTER.

of one of the briers submitted by respondents,"the theory of the libel in rem against the Sydney and the libel in personam at bar is the same." There is no way fairly to distinguish the two cases. In the light ofthis controlling authority the situation is a simple one. Armour, Plankinton & Co. t as owners, had a cause of action against the respondents as common carriers. Armour, ,Plankinton & Co. were alone insured as owner,s of the cargo. By paying them the libelants were subrogated to all their rights., Morse & Co., as carriers and advancers, were also insured, but it was for a520 only, the extent of their actual pecuniary interest in the cargo. " ' The considerations now urged by the respondents may properly be presented to the ,circuit court on appeal, but it is thought that this court cannot with propriety consider them. It follows that the libelants are entitled to a decree for the amount agreed upon at the trial, with costs.

PROVIDENCE WASHINGTON INS.

Co. v.

WAGER

et al,

(District Court. N. D. New York.

February 28, 1888.)

ADHIlU.LTY-F'ROCEJi1OINGS IN REM AND.IN PERSONAM.

An action inaCimiralty in rem is not a bar to an action in peraonam, growing out of the same facts, and,the respondent in the action in peraonam is not en· titled toa stay of the proceedin,l\'s pending an appeal in the action in 'rem.

COXE, This is a motion, in an action in personam, by the respondent Charlys E. Wager, for a stay pending an appeal to the impreme court, taken 'in an action in rem, growing out of the same facts. The Sidney, (Di;;t. Ct. ,) 23 Fed. Rep. 88; The Sidney, (Cir. Ct. ,) 27 Fed. Rep. 119. It is entirely clear that the suit in rem is not a bar to the present action. Iii. view ofthe authorities it is, at least, doubtful whether the respondent is right in his theory that the libelants can, in the action in rem, by motion andamendment,obtain a decree in personam. But even if this can be dOrie, it in nowiSe 'preven ts them from proeeedhlg in a separate action if . they elect so to do'. The weight of authority seems to sustain the proposition'that the :remedy against the vessel and, the remedy against the ownercannot,iIl Circrimstances like the present, be united or enforced ini:the, same action; certainly no case has been cited, or found by the cottrt, which dieputeB the right ofa libelant to pursue'them separately. TheJessie Williamson, J1'., 108U, S. 305,2 Sup. Ct.-Rep. 669; The Sabine, 101U.8.'384; The Zodiac; 5 Fed. Rep. 220; Insurance 00. v. Alexandre, 16 Fed. Rep. 279, and cases citedj'Hule v. lnsurance 00., 2 Story; 176j NeweUv. NClrton, 3 Wall. 257; Admiralty' Rule 15.

HADDEN

fl.

THE

J.

H.RUTTER.

365

The libelants, if they have a cause of action, are entitled to enforce it. It would be most unjust to 'require them to await, without security, the result in the supreme court. The motion is denied.

It is not rea.sonable prudence to undertake navigation, especially at a sea· son of the year when violent squalls are not infrequent, without anchors adapted to the boats in use. If such anchors. are not provided, it must be at the. owner's risk of the natural consequences; . .

The steam-tug R., while towing two heavy car· floats, encountered a violent .squall, which she was unable to breast, and the tow drifted towards a dock where several boats lay moored, and collide9- with the latter, and libelant's boats w·ere injured. The. R. had only one small anchor, wholly insufficient to hold the tow against the squall. The vessels at the dock exhibited nQ lights, Held, that the tug was solely liable for the collision. . 3. MOORED BY A Boats moored in the uSllal way alongside -a wharf, and not in the way of other boats, are not required to exhibit lights.

2.

SAME.

In Admiralty. Hyland Zabriskie, for libelants. Carpenter Mosher, for claimants. BROWN, J. On the night of the 18th December, 1887, at about 11 o'clock, the steam-tug J. H. Rutter left Barclay street, with two loaded car7floats in tow, both lashed upon the port side, bound for Sixty-Eighth sfreet, North river. When oft' Forty-Second street they were struck by. a sudden squall, with a high wind from the northward or north-west, and thick snow. The Rutter was unable to keep her tow headed up river, though using all her force, and in going up they continued to drift towards the New York shore, until she found herself approaching the long pier at the foot of Fifty-Fifth street, along which numerous boats lay moored. She was unable to stop in time to avoid striking some of the boats, and they were knocked about so as to injure two of the libelant's boats, for which injury this suit was brought. When the Rutter left Barclay street the weather was threatening from the north-east, but the wind was not so strong as to prevE-nt proper handling of her tow. It is plain, however, that the tow was so heavy that she was unable to cope with the squall that struck her when the wind hauled to the northward and westward; and she had only a small anchor aboard, wholly insufficient to hold so heavy a tow. Without reference Lo the other charges of negligence. I cannot hold it to be reasonable prudence to undertake navigation, especially at a season
,'Reported by Edward G. Benedict, Esq., of the New York bar.